The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

Thursday, January 07, 2010

We need a debate on the privacy impact of body scanners

I was interviewed by the Halifax Chronicle Herald on the need for a thorough debate about the privacy impact of body scanners and to make sure that we are actually dealing with the problem. And if we're going to use the technology, we need to ensure that all steps are taken to mitigate the privacy impact.

A Halifax privacy expert says airline passengers willing to undergo virtual strip searches are trading privacy for security in an equation that may not result in increased safety in the air.

"Because this is almost unprecedented in its intrusiveness, that means we really need to have a debate about it," David Fraser said Wednesday.

"If you throw out people’s privacy, it doesn’t necessarily mean you’re going to end up with the best security.

"I think we need to have all the facts in front of us about how effective these things are, what sort of impact they’re having on privacy, and how (we can) increase the effectiveness of security while trying to mitigate the impact it can have on privacy."

Mr. Fraser, a privacy lawyer with McInnes Cooper, said most of the people he has spoken with have reacted positively to the news that airports across the country, including in Halifax, will soon use scanners that see through clothes.

The machines show a three-dimensional outline of a naked body that allow screening officers to see whether someone is carrying dangerous items.

"When they balance their safety versus their privacy, they’re happy to give up their privacy in exchange for their safety," he said.

The scanners have been used at some airports outside Canada and were expected to be introduced in this country at some point.

But on Tuesday, the federal government announced it will buy 44 machines as part of an international response to a man’s attempt to blow up a jet approaching Detroit on Christmas Day. The man was wearing explosives sewn into his underwear.

The devices are only supposed to be used on passengers who have been singled out for secondary screening. Those passengers can choose to go through the machines or be frisked.

Mr. Fraser said he would prefer to be scanned rather than have the kind of intrusive pat-down that would be required in order to detect explosives sewn into underwear.

But he said he believes technology is only part of the answer to combating terrorism in the air.

"It’s convenient to throw technology at the problem and I think there may be an assumption this is going to make everybody safe, but I’m not sure this is necessarily the case," he said.

The devices have shortcomings, even if they are better than what is now in place, he said.

And technology, he said, may not be as effective as "strategic investments in humans" who are collecting, analyzing and using the massive amounts of data about possible threats and possible terrorists.

He said the public should ask questions about the use of the images and the safeguards that will be in place to protect them.

Under a plan approved by Canada’s privacy commissioner, an officer would view the image in a separate room and never see the passenger. The images are supposed to be erased automatically and no copies kept.

Other possible safeguards could include scanning screeners to ensure they’re not carrying cameras or cellphones capable of taking pictures of the images, Mr. Fraser said. And just as pat-downs are only done by members of the same sex, perhaps that rule should apply to viewing the naked images, he said.

Please note that I am only able to provide legal advice to clients of my firm. If you have a privacy matter, please contact me about becoming a client. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser may not be protected by solicitor-client privilege.

The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Due to professional ethics, the author may not be able to comment on matters in which a client has an interest. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.